Abstract

This article considers whether there is any lawful authority for
foreign armed forces assisting a territorial State during a non-international
armed conflict to arrest and detain civilians. Taking the backdrop of Iraq and
Afghanistan it considers relevant UN Security Council resolutions including
Resolution 1546 (2004) relating to Iraq which authorized the multi-national
force (MNF) ‘to take all necessary measures’ and provided for the internment,
for imperative reasons of security, of civilians. In respect of Afghanistan, a
number of resolutions authorized the International Assistance Stabilisation
Force (ISAF) to ‘take all necessary measures’. It challenges the notion that the
positive rights under international humanitarian law applicable to an international
armed conflict apply, mutatis mutandis, to a non-international armed
conflict, where national law (including human rights law having extraterritorial
effect) is of primary (although not of exclusive) significance.
It also considers which body of national law, that of the sending or that
of the receiving State, applies to determine the lawfulness of detention of
foreign civilians. The article recognizes that the arrest and detention of
civilians may be necessary during a non-international armed conflict but
concludes that the lawful justification for doing so needs to be clearly
established.